Judges' roundtable on mass torts closed to public; Should it be?

PHILADELPHIA (Legal Newsline) - A roundtable of federal and state judges from across the country will convene at the posh Ritz Carlton on Feb. 9 to address topics such as "Can MDL's keep up with state court trial settings;" "Priority of deposition examination;" "State and federal cooperation;" and "Forum non conveniens."

Sponsored by Mass Torts Made Perfect, the event is open to plaintiff and defense lawyers. It is not, however, open to the media.

Since public servants are convening to discuss public issues (mass torts dramatically affect the economy and the court systems), should the conference be open to the public?

Several law school professors were asked to comment on the ethics of judges gathering in a luxurious setting for a sponsored event that helps lawyers maximize profits.

The collective answer: There's nothing illegal or unethical about judges attending these conferences. The professors said judges are free to be panel members and address such topics, regardless of the setting.

With one exception - the professors declined to express an opinion about the lack of attendance by the media.

"I can see the undertaking makes sense with judges' mass tort litigation experience talking to lawyers," said Lester Brickman, law professor of Yeshiva University Law School, New York City.

"I am troubled by the exclusion of the press. This is an event where public policy about mass torts will be discussed among judges and lawyers without the public being able to know about it."

Others see nothing wrong with the event.

"There's a lot judicial conferences that are invitation only," said Barry Furrow, law professor at Earl Mack School of Law, Drexel University, Philadelphia. "Because it is a private conference these are often seen as closed CLE (Continuing Legal Education) programs."

Nathan A. Sales, assistant professor of law, George Mason University School of Law, Arlington, Va., said he looked at the agenda and did not see anything that "raises any blazing red flags."

"Based solely on the list of speakers, it looks like the sponsors are making an effort to present a balanced approach to the issue," Sales said. "Of course, the devil is always in the details."

The judicial panel in the roundtable consists of: U.S. District Judge Garrett Brown, Chief Judge, District Court of New Jersey (Fosamax Femur MDL); U.S. District Judge Donovan Frank, District Court of Minnesota (Guidant MDL) and U.S. District Judge David Herndon, Chief Judge, Southern District of Illinois (Yaz MDL). State judges include Judge Sandra Mazer Moss, Philadelphia Court of Common Pleas, (retired) Judge Daniel Stack and "Special Master" in Yaz Litigation in Illinois.

Stack once presided over the asbestos docket at Madison County Circuit Court in Illinois until he retired in December 2010.

Another George Mason University School of Law professor, Michael I. Krauss, said judges have the right to accept speaking invitations from groups whose members litigate on one side of an issue - so long as the judges don't express support for the litigants in their talks.

"The judges can discuss legal issues, of course, and their discussions might bring succor to their hosts, but that is not prohibited, otherwise Justice Ginsburg would not be invited to speak to the ACLU and Justice Scalia to the Federalist Society," Krauss said.

Professor Stephen B. Burbank, law professor at the University of Pennsylvania Law School, Philadelphia, said a gathering of judges who have been involved in mass torts talking to other judges and lawyers is "useful."

But he cautioned, "One of the great concerns is if the seminar is put on clearly by an organization that had a point of view."

The Judicial Code of Conduct advises federal judges, "Yet, not withstanding the general principle that judges may attend independent seminars and accept the provision of or reimbursement for expenses, there are instances in which attendance at such seminars would be inconsistent with the Code of Conduct for United States Judges. It is consequently essential for judges to assess each invitation on a case-by-case basis."

An advisory opinion in the federal judicial code of conduct summarizes: "[I]t is permissible for judges to engage in teaching and writing, including participating in CLE seminars, and to accept compensation for doing so, unless the subject matter primarily relates to practice before the judge's own particular court. When the subject matter is thus focused, a judge may participate only if no compensation is accepted, and only if the sponsoring organization is a non-profit entity."